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NEWKIRK v. SHEERS

September 16, 1993

INGRID NEWKIRK, et al., Plaintiffs,
v.
PAUL SHEERS, et al., Defendants.



The opinion of the court was delivered by: BY THE COURT; FRANKLIN S. VAN ANTWERPREN

 VAN ANTWERPEN, J. September 16, 1993

 This 42 U.S.C. § 1983 action is brought by nine plaintiffs, *fn1" against local government defendants in their official and individual capacities. *fn2" The plaintiffs instituted this civil rights action by filing a Complaint on July 22, 1992. Following the filing of a Motion to Dismiss by defendants, plaintiffs filed an Amended Complaint on October 6, 1992. On November 13, 1992, Defendants filed their Answer to the plaintiffs' Amended Complaint.

 After completing discovery, the parties reached an agreement and stipulated to the dismissal of various claims. In the parties' court approved Stipulation filed on August 3, 1993, plaintiffs agreed to dismiss with prejudice Counts II, IV, VII, VIII, IX and X of the Amended Complaint. The parties also decided to dismiss with prejudice Count I of plaintiffs' Amended Complaint except for the claims relating to plaintiffs sleeping on mattresses on the floor of single inmate cells. Finally, the parties were able to reach a tentative agreement with respect to Count XI of the Amended Complaint.

 Accordingly, based upon the Stipulation of the parties, the only remaining claims to be resolved by this court are the claims in Count I relating to plaintiffs sleeping on mattresses on cell floors, Count III relating to restrictions on plaintiffs' use of the telephone during a 48-hour "lockdown" period immediately following their arrest, and Counts V and VI relating to plaintiffs' claims regarding the strip search procedures adopted and followed at the Schuylkill County Prison. With respect to these claims, the parties have entered into a Stipulated Statement of Facts.

 Before the court now are the parties' cross summary judgment motions, which were both filed on August 3, 1993. Both parties maintain in their briefs that there are no outstanding material issues of fact. Based upon the parties' Stipulated Statement of Facts and for the reasons that follow, we will grant plaintiffs' motion in part and deny it in part and grant defendants' motion in part and deny it in part.

 I. SUMMARY JUDGMENT STANDARD

 The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248, 106 S. Ct. at 2510. All inferences must be drawn and all doubts resolved in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S. Ct. 993, 994, 8 L. Ed. 2d 176 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.), cert. denied, 474 U.S. 1010, 106 S. Ct. 537, 88 L. Ed. 2d 467 (1985).

 On motion for summary judgment, the moving party bears the initial burden of identifying for the court those portions of the record that it believes demonstrate the absence of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n.3, 106 S. Ct. at 2552 n.3 (quoting Fed. R. Civ. P. 56(e)); see First Nat. Bank v. Lincoln Nat. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49, 106 S. Ct. at 2510-11.

 II. STIPULATED FACTS

 The parties to this case filed a Stipulated Statement of Facts on August 3, 1993. These Stipulated Facts are set forth in their entirety and may be summarized as follows.

 Plaintiffs were arrested on September 2, 1991, in connection with a non-violent civil disobedience protest at the Hegins Pigeon Shoot, an annual event held each Labor Day weekend since 1934 in Hegins, Pennsylvania. Statement of Stipulated Facts ["Stip. Facts"], PP 1, 2. Pigeons are placed in boxes from which they are catapulted in the air and then shot by contestants. Stip. Facts, P 1. Plaintiffs were arrested after going onto the shooting field in order to release pigeons from their boxes and to rescue wounded pigeons that had fallen to the ground. Stip. Facts, P 13. All of the plaintiffs were charged with criminal trespass; plaintiffs Prescott and Woods were also charged with theft and receiving stolen property. *fn3" Stip. Facts, PP 15, 16.

 Following the arrests, plaintiffs were taken before a District Justice, who ordered those plaintiffs refusing to post bail incarcerated as pretrial detainees in the Schuylkill County Prison. *fn4" Stip. Facts P 17. Seven of the plaintiffs remained in the prison from September 2, 1991 until September 16, 1991, at which time they entered guilty pleas, were fined and/or sentenced to time served and released. Stip. Facts, P 18.

 During plaintiffs' detention, they were subjected to various conditions that they allege violated their constitutional rights, including (1) being subjected to strip and body cavity searches pursuant to a blanket strip search policy implemented by Schuylkill County, Stip. Facts, PP 20-36, (2) being required to double-up in cells designed for one inmate and being forced to sleep on mattresses on cell floors, Stip. Facts, PP 37-55, and (3) having restricted access to telephones during an initial 48-hour "lockdown" period, Stip. Facts PP 56-68.

 The parties have stipulated that we should base our decision upon the following facts:

 1. For 60 years the town of Hegins, Pennsylvania, has hosted an annual contest shoot of live pigeons on Labor Day. Plaintiffs oppose the pigeon shoot for the following reasons:

 
East year the shooters kill or injure more than 6,000 pigeons. The birds are placed inside small boxes ("traps") from which they are catapulted. They are then shot by the contestants. Many of the birds are killed outright; the wounded ones are picked up by town children, known as "trapper boys," who twist off the birds' heads or stomp them to death.

 Defendants are not responsible for the pigeon shoot and have not participated in the pigeon shoot and are therefore not able to stipulate to the accuracy of the Plaintiffs' reasons.

 2. The Plaintiffs, all of whom were arrested during a protest at the 1991 Hegins Pigeon Shoot, are Ingrid Newkirk, age 43, Laura Yanne, age 38, Robin Lord, age 41, Heidi Prescott, age 35, Robin Walker, age 27, Sue Brebner, age 42, Teresa Gibbs, age 30, Jenny Woods, age 31 and Dana Forbes, age 38.

 3. Plaintiffs were aware that a confrontation could occur during which they could be arrested. Some of the Plaintiffs had previously been arrested and plead guilty to similar charges during similar animal rights protests.

 4. Defendants Paul Sheers, Franklin L. Shollenberger and Mary Ann Conway are the current County Commissioners of Schuylkill County. Mary Ann Conway was not a County Commissioner during the period of the Plaintiffs' imprisonment and was sworn into office on January 6, 1992. She was not responsible for any prison policy making decisions prior to that time.

 5. Defendants the Honorable Joseph F. McCloskey, Claude Shields, Timothy Holden, and Donald Kerns are members of the Schuylkill County Prison Board. Louis Wallaver was the Court Administrator but not a member of the Prison Board.

 6. Defendant David Kurtz is Warden of the Schuylkill County Prison.

 7. Defendant Raymond Lorent is Deputy Warden of Schuylkill County Prison. Deputy Warden Lorent served as acting Warden during a portion of the period from September 2, to September 16, 1991, when Warden Kurtz was absent from Schuylkill County Prison.

 8. Defendants Elmer Cutler, John Kling, and William Nasados are supervisors at the Schuylkill County Prison. They were not involved in any policy making decisions with respect to the Schuylkill County Prison.

 9. Defendants Hilda Laubach, Sandy Medinsky, Linda Neidig, Bernadine DeAngelo, Patricia Heckman, Barbara Schwartz, and Carol A. Mickalowski are corrections officers at the Schuylkill County Prison and held those positions in September of 1991. Defendant Kathleen Shartzer was a corrections officer at the Schuylkill County Prison in September of 1991. They were not involved in any policy making decisions with respect to the Schuylkill County Prison.

 10. Defendant DeAngelo has been a certified corrections officer since 1985.

 11. Defendant Neidig has been a certified corrections officer since 1985.

 12. Plaintiffs were arrested on various summary offense or misdemeanor charges on September 2, 1991, during their participation in a civil disobedience protest at the annual pigeon shoot in Hegins, Pennsylvania.

 13. Plaintiffs were arrested after going onto the shooting field in order to release pigeons from their boxes and to rescue wounded pigeons laying on the ground.

 14. Plaintiffs were all charged with criminal trespass as either a summary offense or misdemeanor.

 15. The citation for criminal trespass issued to Plaintiff Lord stated that, in part, the nature of the charge against her was carrying the American flag without privilege to do so.

 16. Plaintiffs Prescott and Woods were also charged with theft and receiving stolen property. The property involved in both offenses was the pigeons that they were attempting to rescue.

 17. Following their arrests, each of the Plaintiffs was taken before a district justice at which time bail was set. Failing to post bail, each Plaintiff was then incarcerated as a pretrial detainee in the Schuylkill County Prison. Some of the Plaintiffs chose not to post bail as part of their protest against the pigeon shoot.

 18. Plaintiffs Ingrid Newkirk, Heidi Prescott, Robin Walker, Sue Brebner, Teresa Gibbs, Jenny Woods and Dana Forbes remained in the Prison from September 2, 1991, until September 16, 1991, at which time they entered guilty pleas, were fined and/or sentenced to time served, and released. Plaintiff Laura Yanne posted bail and was released from prison on September 3, 1991, and subsequently entered a guilty plea.

 19. Plaintiff Robin Lord was released on bail on September 3, 1991. The charges against her were eventually dismissed.

 Strip and Visual Body Cavity Searches

 20. Upon their arrival at the Prison on September 2, 1991, between the hours of 5:30 p.m. and 9:15 p.m., each Plaintiff was subjected to a "pat" search followed by a strip and visual body cavity search performed by a female corrections officer. This search was performed as part of the admission process that included obtaining medical information, photographing, fingerprinting and providing each Plaintiff with prison clothes.

 21. Each Plaintiff was taken by a female corrections officer into the Prison Property Room, instructed to remove all her clothing, and ordered to turn her back to the corrections officer, bend over at the waist, and spread her buttocks.

 22. The strip and visual body cavity searches of Plaintiffs Newkirk, Brebner, Gibbs, Lord, Prescott, Walker and Woods were conducted by corrections officer Bernadine DeAngelo. The strip and visual body cavity searches of Dana Forbes and Laura Yanne were conducted by either corrections officer Linda Neidig or corrections officer Bernadine DeAngelo. Neidig performed at least one of those searches.

 23. The strip and visual body cavity searches were performed pursuant to the officially adopted policy of Schuylkill County requiring that all individuals admitted as prisoners into Schuylkill County Prison, including pretrial detainees, undergo strip and visual body cavity searches. Pursuant to this policy, all pretrial detainees undergo this search without regard to the offense with which they have been charged, their prior record, or any specific suspicion of concealment of contraband.

 24. This strip search policy is set forth in the Policy and Procedures Manual of the Schuylkill County Prison. This manual was revised by Warden Kurtz. The policy also appears in the Rules and Regulations handbook of the Schuylkill County Prison. The handbook was written by Warden Kurtz. Both of these documents were approved by the Schuylkill County Prison Board and the Pennsylvania Department of Corrections.

 25. The Schuylkill County Prison Rules and Regulations provide:

 
D. You will undergo search procedures as follows:
 
1. Full search of all clothing and personal articles--including dismantling if necessary.
 
2. Full body (strip) search of your person for the purpose of locating contraband, identifying injuries, and marks of identification.

 26. The strip searches were also conducted in reliance upon 37 Pa. Code § 95.222(b)(1), which provides:

 
The following are the recommended guidelines concerning the admission process:
 
Each prisoner admitted shall be stripped and searched for weapons and contraband. The search should also include a check for body vermin, and for cuts, bruises, needle scars, and other injuries. The strip search should be conducted in a professional nonhumiliating manner, and for security and privacy reasons, the search should be conducted in an area where the prisoner is in view of only those officers in charge of the search.

 27. The purpose of the strip search is to search for weapons, contraband and check for any injuries or marks on the body.

 28. The searches of the Plaintiffs were conducted solely on the basis of Prison policy and were not based upon any specific suspicion that any of the Plaintiffs was concealing weapons, drugs, or other contraband.

 29. Plaintiffs were given copies of the Rules and Regulations handbook upon their arrival at the Prison.

 30. None of the Plaintiffs has ever been arrested for offenses involving weapons or drugs.

 31. At the time Plaintiffs were processed into the Prison, Defendants did not know whether or not Plaintiffs had prior criminal records.

 32. Prior to September 2, 1991, inmates had attempted to smuggle contraband into the Schuylkill County Prison in body cavities on several occasions.

 33. Pursuant to prison policy, Plaintiffs Woods, Forbes, Prescott, Brebner, Newkirk, and Gibbs underwent a second strip search when they returned from their court hearings of September 16, 1991. These searches were performed by Defendant Barbara Schwartz.

 34. None of the Plaintiffs were physically touched during the strip searches that were carried out.

 35. Defendants Neidig and DeAngelo acknowledge that they know there is a difference in legal status between convicted prisoners and pretrial detainees.

 36. During the search of Plaintiff Prescott on September 2, 1991, corrections officer DeAngelo ordered her to remove her tampon and to place the soiled tampon in a bag held by DeAngelo.

 Mattresses on the Floor

 37. Each of the Plaintiffs was housed in Cell Block A, the women's cell block at ...


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